Page images
PDF
EPUB

end of law and the application of legal rules, are left out of the enumeration, although by no means lost sight of in the text.

Among the good features of the book which will be of interest here, note may be made of a suggestive application of Austin's theory to Mohammedan law (p. 38), an accurate and discriminating discussion of the French theory and practice as to the authority of judicial decisions and of the recent tendency to make “jurisprudence” a source of law (p. 90), a convenient note on French decisions, the publications containing them and the mode of citing them (pp. 92-94), a matter to which reference in English has not been easy heretofore, a similar note with respect to French doctrinal writings (pp. 106-107), a valuable note on recent Continental ideas as to interpretation (pp. 149-150) and a note on the nature of a juristic person (pp. 241-245) presenting the modern French view as well as the now familiar doctrine of Gierke.

On the other hand, the long exposition of Savigny's theory of law (pp. 44-48) is followed by no suggestion as to the present status of that theory and the social-philosophical views that are replacing it. Also the discussion of codification does not go beyond the well-trodden path of the controversy between Thibaut and Savigny, the Austinian critique of Savigny and the answer of the English historical jurists thereto. The author accepts Amos' statement that the argument of Savigny is unanswerable. It is true he does mention the refutation of the charge that the French code has hampered legal development which Saleilles made so thoroughly and convincingly. But he does so only to disparage it. To him the idea of a code is the Benthamian one. He had seen Carter's Law: Its Origin, Growth and Function, which he criticizes justly, but not Professor Gray's Nature and Sources of Law. One must feel that the discussion of sources of law might have been much better if the latter work had been consulted.

Sir Henry Maine's unhappy prophecy as to the effect of the Louisiana code may be responsible for the over-cautious statement that the common law is the basis of the law of “most” of the United States, “the principal exception being Louisiana” (p. 19). But it is not so easy to account for the reference to “Sir James Bryce” (p. 14).

But such criticisms may well leave a false impression. The book is one to which American teachers of jurisprudence will be glad to refer students for many things not otherwise available in English, and in which those who do not care to read French will find much valuable material for discussion.

R. P.

MODERN THEORIES OF CRIMINALITY. By C. Bernaldo de Quirós. Translated

from the Spanish by Alfonso de Salvio, with an introduction by William

W. Smithers. Boston: Little, Brown and Company. 1911. pp. xxvii, 249. During the past century many changes and ameliorations have been made in our criminal law, but there has been practically no departure from its fundamental theory of personal responsibility. Of late years European writers have strongly attacked this theory and have sought to explain criminality on other grounds. For the purpose of making these new theories available for study and experiment in this country, the American Institute of Criminal Law and Criminology arranged for the translation and publication of certain of the most characteristic writings on criminology under the general title of the Modern Criminal Science Series. The purpose of the series is indicated by the following statement in the general introduction: “Which of the various principles and methods will prove best adapted to help our problems can only be told after our students and workers have tested them in our own experience. But it is certain that we must first acquaint ourselves with these results of a generation of European thought.”

The present volume is the first of the series and is in scope a classified bibliography, with a brief statement and comparison of the most important theories. The author says in the preface to the first Spanish edition: “It is a work essentially of information, seldom altered by the personal reflections of the author.” The book contains three chapters of which the third was written for the present edition.

In the first chapter criminology is traced from its sources in the occult sciences and psychiatry, and then are set forth the theories of the “three innovators,” Lombroso, Ferri, and Garofalo, who are designated as anthropologist, sociologist, and jurisconsult respectively. In the section on the development of criminology, the various theories are divided into two general groups, the anthropological and the sociologic. The great controversy between the anthropologists and the sociologists is stated to be: “Is the criminal born so, or is he a product?” Anthropological theories are divided into atavistic, of degeneration, and pathologic; sociologic theories, into anthropo-sociologic, social, and socialistic.

In the beginning of the second chapter the reforms in the criminal law accomplished by Beccaria and Röder, and the reformation of penitentiary science by John Howard, are briefly referred to. The author says that modern penology has three tendencies, the traditional, the reformistic, and the radical. The reformers who “advocate the traditional penal measures for certain delinquents only with a repressive aim, while for others they reserve preventive measures against relapse and imitation, in accordance with the teachings of modern criminology,” are said to be in the majority everywhere. The greater portion of this chapter is devoted to a consideration of the “applications” of criminal law and penitentiary science to delinquents, who are classified as minors, adults without criminal record, and adult recidivists. Under this head juvenile courts, the American system of probation, the English system of conditional sentence, pardon, deportation, indeterminate sentence, reformatories, and capital punishment are discussed. There are also sections on responsibility, prevention of delinquency, and reparation of the injury caused by crime.

In the third chapter, the author treats of the identification of criminals by anthropometry and dactyloscopy. He also considers scientific methods of obtaining evidence, and the value of testimonial evidence. In conclusion he reviews briefly the entire subject and indicates the problem for the future.

Two significant conclusions may be drawn from the subject matter of this book. The first is that the problem of dealing with the criminal may be approached from opposite standpoints. His physical and social condition may be made the test for determining his responsibility to the law for the wrong done, or this condition may be considered in selecting the treatment to be accorded him after he has been convicted. The former represents the attitude of the European criminologists; the latter is the method that has been largely pursued in this country, where important penal reforms, such as the probation system, the indeterminate sentence, and the reformatory system, have originated. The second conclusion is that the theories of the modern school of criminology are as yet unproved. They are still in the propagandic stage, and should neither be rejected without study and trial, nor be accepted as established. It would seem that Mr. Smithers assumes too much when he says in his introduction: “The criminal being the product of cosmic, biological, or social influences which put him out of harmony with conventional morality and cause him to disturb the recognized aims of community existence, must be treated as a ward of the State for the purpose of curing his impairment and meanwhile keeping him so sufficiently restrained as to prevent injury to others.”

E. R. K.

THE LAW OF FRAUDULENT CONVEYANCES. By Melville Madison Bigelow.

With Editorial Notes by Kent Knowlton. Boston: Little, Brown and

Company. 1911. pp. Ixix, 762. In the two volumes published in 1888 and 1890, entitled "A Treatise on the Law of Fraud on its Civil Side,” Dean Bigelow set himself the task of defining fraud and covering as a whole the entire field indicated in the title. For this purpose he divided fraud into two parts: “In the one the person defrauded and the person defrauding have been dealing with each other; that part is ‘deception.' In the other they have not been dealing with each other; that part is 'circumvention."" The first part of the subject, so divided, was covered in the earlier volume. Circumvention was the subject of the second volume, which treated fraudulent conveyances and a few other matters under the heading of evasion.

The present book is the second volume, newly edited, and issued as a separate treatise, with the matters other than fraudulent conveyances omitted. This is a departure from the author's original intention of defining fraud and covering the whole subject (as a matter of civil law) in a single treatise. Tort for deceit and fraudulent conveyances are well-defined topics, but otherwise the subject of fraud lacks continuity, entering, as it does, into so many otherwise unrelated fields as to render it inherently difficult to treat as a whole, the difficulty increasing with the development of the law. Had this new volume covered the entire field of its predecessor, we should, for example, have expected it to contain a discussion of the effect, or supposed effect, of “fraud" in rendering corporate organization substantially ineffective, and a definition of such "fraud,' - a subject which is properly a part of the law of corporations and can best be treated only in that connection. Other instances occur which, with other considerations, show the wisdom of publishing the present volume as a separate work.

The new volume is substantially similar to that part of the old which dealt with fraudulent conveyances, there being but few omissions, and a few slight alterations, from the original text. The author's notes are enlarged, and new citations added, by indicated insertions; also there is a new series of notes by the editor. These include, among various comments upon the text and upon collateral points, a long note upon conditional sales, a note on Sales of Goods in Bulk Acts, and several notes occasioned by the Federal Bankruptcy Act, which is not treated in the text.

A. R. G.

CONSTITUTIONAL LAW. By James Parker Hall. Chicago: La Salle Extension

University. 1911. pp. xiv, 457. This volume was prepared not for the practitioner nor for the student of law, but for the general reader. The plan includes an enunciation of the principal doctrines and a statement of a considerable number of the principal cases. As the plan is a good one and is executed with care, the result is a volume the usefulness of which extends beyond the circle of those non-professional readers whose needs it aims to fill, and any person of intelligence, whether layman or lawyer, will find it thoroughly interesting. Moreover, as the book does not excessively quote from judicial opinions and is in no sense a paraphrase of earlier treatises, it deserves to be recognized, notwithstanding its modest purpose, as a noticeably honest piece work.

HARVARD

LAW REVIEW.

VOL. XXV.

MARCH, 1912.

NO. 5.

A PROBLEM IN THE DRAFTING OF WORK

MEN'S COMPENSATION ACTS.

[I. - Continued.]

[ocr errors]

Arising out of and in the Course of Employment.

* ARISING

RISING out of, points to the origin or cause of the accident,

and, in the course of, to the place and circumstances under which the accident takes place") and the time when it occurred.?

The injury must be received in the course of employment and must also arise out of it; neither alone is sufficient. In the great

1 Buckley, L. J., in Fitzgerald v. Clarke & Co., (1908) 2 K. B. 796, 1 B. W. C. C. (Butterworth’s Workmen's Compensation Cases) 197 (C. A., 1909).

? See Loreburn, L. C., in Moore v. Manchester Liners, Ltd., (1910) A. C. 498, 500, 3 B. W. C. C. 527, 529: “The first inquiry is, Was he doing any of the things which he might reasonably do while employed ? ... The next inquiry is, Did the accident occur within the time covered by the employment? ... The last inquiry is, Did the accident occur at a place where he may reasonably be while in the employment ?" Not only is this definition extremely vague but it is contained in a dissenting opinion by Lord Loreburn, holding, contrary to the majority of the House of Lords, that, judged by this test, the plaintiff was in the course of employment. And see Lord Justice Farwell's criticism of it in Kitchenham v. S. S. Johannesburg, (1911) i K. B. 523, 531.

* It may appear at first glance that unless the servant is actually engaged in work in the course of his employment no injury sustained by him can be caused by it and so arise out of it. See Farwell, L. J., in Kitchenham 0. S. S. Johannesburg, (1911) 1 K. B. 523, 530, and the Lord President in M’Lauchlan v. Anderson, 48 Scot. L. Rep. 349, 4 B. W. C. C. 376 (Ct. Sess., 1911). While this is generally true, cases may arise where an injury is caused by an employment which at the time of the accident the servant has, under the decisions, left or not yet entered upon. An injury sustained by a servant on his way to or from work at some highly dangerous place over which,

majority of cases the requiren, ent that the injury be received in the course of the employment is the broader of the two, the requirement that it must arise out of the employment in general operates · to restrict recovery to such injuries only, among those which the workman sustains while in the course of his employment, as also arise out of it.

The phrase "in the course of employment” presents two principal questions. The first concerns the period of employment. When does it begin and end, and, during this period, when is its continuity broken? The second raises the question as to how far the servant during the period of employment places himself outside thereof by doing that which he is not employed to do, or by doing his appointed work at a place other than that which his master has appointed for that purpose, or by deliberately adopting a method of performing the work other than that prescribed by his master or forbidden by him.

After some little vacillation it is finally settled that the term "in the course of his employment” is not limited to those periods during which the servant is actually engaged upon work which he is employed to perform. “In the course of employment' does not mean ‘in the course of industrial work.' Nor is it limited to the time for which wages are paid. Indeed the fact that the workman is paid wages for the time when the accident occurs is of little, if any, importance.

On the other hand, it is well settled that the course of employment does not include all the many acts of which the employment is the sole or at least predominant cause, which are done solely because the doer is engaged in a particular employment at a particular place, and which neither an idle man nor one engaged in another employment would have occasion to do. So wide a construction

4

though outside the master's premises, he is obliged to pass, seems to be as directly caused by his employment as an injury received upon his master's premises, but before or after his actual work has begun or ended. See Lord McLaren in Menzies v. McQuibban, 2 Fraser 732, 735-736 (Scot. Ct. Sess., 1900). In such cases recovery is denied solely on the ground that the employment is held not to begin until the servant enters his master's premises and to end when he quits it. See Holness v. Mackay & Davis, (1899) 2 Q. B. 319, 1 W. C. C. (Workmen's Compensation Cases) 13, which seems to have been such a case.

4 Fletcher Moulton, L. J., in Riley o. Holland & Sons, Ltd., (1911) 1 K. B.1029, 1033. 5 See Holness v. Mackay & Davis, (1899) 2 Q. B. 319, 1 W.C.C. 13, where the work

was not only required to go upon a railway company's premises and cross its

man

« PreviousContinue »